Gauhati High Court
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GAHC010107882025
2025:GAU-AS:9203
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Bail Appln./1707/2025
JHALMAN SINGH
S/O NAZAR SINGH
R/O TOOSA, TEHSIL RAJKOT, V.P.O. TOOS, P.S. SUDHAR, TOOSEY,
LUDHIANA, PUNJAB-142023
VERSUS
UNION OF INDIA
REPRESENTED BY THE SC, NCB
Advocate for the Petitioner : MS. S K NARGIS, Q. KIBA,MS N SULTANA,MS S BEGUM
Advocate for the Respondent : SC, NCB,
BEFORE
HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA
ORDER
Date : 16.07.2025
1. Heard Ms. S.K. Nargis, the learned counsel for the petitioner.
Also heard Ms. M. Deka, learned counsel for NCB.
2. This application under Section 483 of the BNSS, 2023 has been
filed by the petitioner, namely, Jhalman Singh, who has been detained
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behind the bars since 10.12.2020 (for more than four years six months) in
connection with Special NDPS Case No. 23/2021 under Sections 21(C)/29
of NDPS Act, 1985, pending before the Sessions Judge, Kamrup,
Amingaon.
3. The gist of accusation in this case, in brief, is that on
05.06.2021, the NCB had filed a complaint before the learned Special
Judge, Kamrup (Amingaon) against four accused persons including the
present petitioner, inter alia, alleging that on 09.12.2020, an information
was received by the NCB that two persons including the present petitioner
will be transporting huge number of phensedyl cough syrup in a vehicle
bearing registration No. PB-13-AW-9785. Accordingly, a search team was
constituted and the aforementioned truck was intercepted. During search
of the said truck, total 19984 bottles of phensedyl cough syrup were
recovered from there.
4. The learned counsel for the petitioner has submitted that the
petitioner was arrested on the said truck as he was co-driver of the said
truck. After laying of the charge sheet, on 30.11.2024, charges were
framed against the present petitioner and other co-accused under Section
21(C)/29 of NDPS Act, 1985.
5. The learned counsel for the petitioner has submitted that she
has approached this Court seeking bail mainly on the ground of prolonged
incarceration as the petitioner has been languishing behind the bars for
more than four year six months and out of ten listed prosecution
witnesses only four witnesses have been examined.
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6. The learned counsel for the petitioner has further submitted that
the petitioner before moving the instant bail application had approached
this Court for seeking bail on earlier occasion and by order dated
11.04.2025 passed in Bail Application No. 3876/2024, the Co-ordinate
Bench of this Court had rejected his prayer for bail and directed to the
Trial Court to complete the trial within four months of the said order. She
also submitted that more than three months have been lapsed since the
date of the direction, however, only two more witnesses have been
examined till date and it is unlikely that the trial would complete soon. She
has further submitted that though the petitioner on earlier occasion also
had prayed for bail on the ground of prolonged incarceration, however,
said aspect has not been dealt by the Co-ordinated Bench of this Court
while rejecting the bail application of the petitioner. She further submitted
there are judgments of Apex Court which provide that prolong
incarceration overrides the embargo of Section 37 of NDPS Act, 1985.
7. Learned counsel for the petitioner also submitted that the
petitioner was also granted interim bail on 12.05.2023 by the Trial Court
for enabling the petitioner to attend the last rites of his mother. She
submits that petitioner had complied with the conditions of the interim bail
and had surrendered before the Trial Court on 09.06.2023 after
performing last rites of his mother, hence she submits that the petitioner
would not jump bail if same is granted to him.
8. Learned counsel for the petitioner has, in support of her
submission cited several rulings of the Apex Court in which bails were
granted to the petitioners on the ground of prolong incarceration.
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Amongst the rulings cited by the learned counsel for the petitioner, she
has mainly prayed on the judgment of the Apex Court in the case of Rabi
Prakash vs. State of Odisha reported in 2023 SCC Online 1109,
wherein it has been observed by the Apex Court that “the prolonged
incarceration, generally militates against the most precious fundamental
right guaranteed under Article 21 of the Constitution and in such a
situation, the conditional liberty must override the statutory embargo
created under Section 37 (1) (b) (ii) of the NDPS Act”.
9. On the other hand, Ms. M. Deka, learned counsel for the NCB
has opposed the grant of bail to the petitioner on the ground that the
quantity of contraband seized in this case is of commercial quantity and
accordingly the embargo of Section 37 of the NDPS Act, 1985 is applicable
to this case.
10. She submits that the Co-ordinate Bench of this Court while
rejecting the application for bail on 11.04.2025 has considered all the
pleas taken by the petitioner and after the rejection of the bail application
on 11.04.2025, no new ground has accrued justifying grant of bail to the
petitioner. She has submitted that the seized contraband was recovered
from the conscious possession of the petitioner and the fact that length of
detention cannot be considered as a ground of release the petitioner on
bail has already been dealt by the Co-ordinate Bench of this Court in its
order dated 11.04.2025 passed in BA/3876/2024. She also submitted that
the rulings of Co-ordinate Bench of this Court in the case of Saheb
Sahani vs. Union of India (order dated 14.07.2025 passed in BA No.
1918/2025), wherein it was observed that if the delay occurred in a
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particular case is not considered as inordinate delay, it would not violate
the right of the accused under Article 21 of the Constitution of India and
on that ground he may not get bail. On the similar lines, she has also cited
ruling of Co-ordinate Bench of this Court in Prempal Singh & Anr. vs.
Union of India (order dated 06.06.2025 in BA No. 1349/2025)
11. I have considered the submissions made by the learned counsel
for both sides.
12. The Supreme Court of India in “Mohd Muslim @ Hussain Vs.
State (NCT of Delhi), reported in 2023 SCC Online SC 352″, has
observed that “Grant of bail on ground of undue delay in trial, cannot be
said to be fettered by section 37 of the NDPS Act, 1985″.
13. Similarly, the Apex Court of India has also observed in “Rabi
Prakash Vs. The State of Odisha” (Supra) wherein, it observed that
“prolonged incarceration, generally militates against the most precious
Fundamental Rights guaranteed under Article 21 of the Constitution of
India and in such a situation, the conditional liberty must override the
statutory embargo created under Section 37(1)(b)(ii) of the NDPS Act,
1985.”
14. In the instant case also the petitioner has been languishing
behind the bars for more than four years six months which, in the
considered opinion of this Court is long enough for considering the same
as violative of the fundamental rights of the petitioner under Article 21 of
the Constitution of India. In the judgments of the Co-ordinate Bench of
this Court cited by the learned counsel for the NCB, the Court was not
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convinced regarding length of detention to be long enough so as the
regard as prolonged incarceration for entitling the petitioner to grant of
bail on that ground. However, in the instant case, this Court is of the
considered opinion that in the light of the observations made by the Apex
Court in the rulings cited hereinabove, for whatsoever reasons if
inordinate delay is caused and it is not out of the fault of the petitioner,
then to keep the petitioner under incarceration for long period on one
hand and to continue to the cause delay in early culmination of the trial on
other hand will certainly infringe the fundamental rights of the petitioner
guaranteed to him under Article 21 of the Constitution of India. Under
such circumstances, the fundamental right of the petitioner under Article
21 of the Constitution of India would outweigh the embargo of Section 37
of NDPS Act, 1985.
15. In view of the above discussed observation made by the Apex
Court, this Court is of the considered opinion that if, under the facts and
circumstances of a case, this Court comes to the finding that there is
undue delay in the completion of the trial, and that the incarceration of
the petitioner is long enough, he would be entitled to get bail on the
ground of such prolonged incarceration, as in such a case of prolonged
incarceration, the right to life and personal liberty guaranteed to the
petitioner under Article 21 of the Constitution of India would outweigh the
fetters imposed under Section 37 of the NDPS Act, 1985.
16. It is also pertinent to mention herein that the Hon’ble Supreme
Court of India had granted bail to an accused facing charges for
possession of commercial quantity of contraband only on the ground of
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prolonged incarceration in “Shariful Islam @ Sarif Vs. State of West
Bengal” (Order dated 04.08.2022 passed in SLP Criminal No. 4173/2022),
wherein the accused was detained behind bars for one year and six
months.
17. In “Nitesh Adhikari Vs. State of West Bengal” (Order dated
04.05.2022 passed in SLP Criminal No. 5769/2022), Hon’ble Apex Court
granted bail to the accused facing accusation under Section 21(c) of the
NDPS Act, 1985 on the ground of incarceration of one year seven months.
18. Similarly in “Md. Salman Hanif Shaikh Vs. State of Gujarat“
(Order dated 22.08.2022 passed in SLA Criminal No. 5530/2022), the
petitioner was granted bail by the Apex Court on the ground of prolonged
incarceration of two years.
19. In “Chitta Biswas Alias Subha Vs. The State Of West
Bengal” (Order dated 07.02.2020 passed in SLP Criminal No. 8823/2019),
the Apex Court granted bail to the petitioner, who was facing a trial for
possessing a commercial quantity of contraband on the ground of
prolonged incarceration of 1 year 6 month.
20. It appears on perusal of the rulings cited by learned counsel for
the petitioner that in all the cases cited by the petitioner, though
commercial quantity of contraband was involved and apparently the
embargo of Section 37 of the NDPS Act, 1985 would have been applicable
in those cases, however, only because of the fact of the prolonged
incarceration of the petitioners, the Apex Court allowed the petitioners to
go on bail.
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21. In the instant case also, the present petitioner has been detained
behind the bars for last four years six months and the trial is yet to
culminate and in view of the facts and circumstances of this case as well
as considering the observations made by the Apex Court in the rulings
cited hereinabove, wherein, it has dealt with the question of long
incarceration of similarly situated petitioners who were before the Apex
Court, this Court is of the considered opinion that in the instant case also,
the facts and circumstances are such that the long incarceration of the
present petitioner outweighs the embargo of Section 37 of the NDPS, Act
1985 and the petitioner is therefore entitled to get bail on the ground of
prolonged incarceration only.
22. In view of the above, the petitioner, namely, Jhalman Singh is
allowed to go on bail of Rs. 1,00,000/- (Rupees One Lakh only) with two
sureties of like amount (one of whom should be a government servant
and residing within the State of Assam) subject to the satisfaction of the
learned Sessions Judge, Kamrup, Amingaon with the following conditions:
i. That the petitioner shall cooperate in the trial of NDPS
Case No. 23/2021, which is pending in the Court of learned Sessions
Judge, Kamrup, Amingaon;
ii. That the petitioner shall appear before the Trial Court as
and when so required by the Trial Court;
iii. That the petitioner shall not directly or indirectly make any
inducement, threat, or promise to any person who may be
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from disclosing such facts before the Trial Court in the trial pending
against the present petitioner;
iv. That the petitioner shall provide his contact details including
photocopies of his Aadhar Card, Driving License, PAN card, mobile
number, and other contact details before the Trial Court;
v. That the petitioner shall not leave the jurisdiction of the
Trial Court without prior permission of the Trial Court and when such
leave is granted by the Trial Court, the petitioner shall submit his
leave address and contact details during such leave before the Trial
Court; andvi. That the petitioner shall not commit any similar offence
while on bail.
23. With the above observation, this bail application is accordingly,
disposed of.
JUDGE
Comparing Assistant